Yesterday i Received A certified Letter Stating That im being Sued for 10,000.00.Heres my situation I had a Citibank Credit Card That went sour for 6,100.00 in 1996.It was on my credit report ,then the debt was bought by Gulf state.I sent Gulf State a validation Letter which they could not prove that the account was mine.It was deleted from my account.Now yesterday i receive a letter that im being sued from another company that i guess bought the debt What do i do in this situation,i mean its not even on my credit report .Can they sue me,and what should I do.Please Help
It charged off in 1996? I believe in pretty much ANY state that it would be past the Statue of Limitations. From what others have said in the past that would be your defense in court. I guess it would be a slam dunk case for you! Anyone else?
Yes they can sue you even if it is not on your credit report. But, there are a few things to consider. The old CA could not prove the debt was yours. Can the new CA prove it? They will have to in order to win. Most important is the statute of limitations. They only have a certain amount of time to sue you and it varies by state. BUT, this is what is called an affirmative defense. If the SOL has expired, you have to properly raise the issue in court for the suit to be dismissed. No one will do it for you. And, if you don't, they can get a judgement against you. I would start with the SOL first. Some of the regulars here know the link to a site that posts the SOL for each state. Check your state and let us know.
New Jersey: Oral Agreements 6 years Written Contract 6 years Promissory Notes 6 years Open Accounts 6 years I believe a CC is a written contract. So if it was C/O in 1996 you need to find out the exact month. If it is a few months from now (I would say latest June) ask the court for a continuance, say you are on the waiting list for a pro bono (not sure if thats the word I am thinking of) lawyer. A lawyer who will represent you based on your income!
hmmm, I am wondering if the creditor has actually filed suit would trying to delay it to go before the court till after the SOL work? If it was filed before the SOL then this defense wouldn't apply would it? Tuit
On the other hand If they haven't filed yet and the SOL is very close I could see sending a validation letter right away and trying to stall them filing a complaint that way, anything to keep them from actually filing until the SOL is up. Tuit
this account was deleted 3 months becuase the old company that had this debt could not prove that it was mine now what do i do
1) If they file before the sol runs, a continuance does no good. 2)A validation letter does not stop a lawsuit if they want to file. It's in the FDCPA. They must cease actively collecting, but , they may proceed with a lawsuit. That said, if it was me, I would send the validation. Hopefully that will stop them for awhile. You need to find out when it charged off or better yet, when you made your last payment.
I agree with Lizardking. Send a validation letter now. It will at least help give you a defense. Think of it this way: 1: You show up in court and assert no defenses (or don't show). they'll get a judgment 2. You show up and assert SOL and it's run out. Then you'll win. SOL is an absolute defense. 3. You show up and assert SOL and it's within the timelimit. You'll likely lose. 4. You show up and ALSO assert the claim that you requested validation and didn't get an answer or an improper answer. Now you're putting out affirmative defenses. At least it gives you more avenues in addition to the SOL defense. Also, maybe they'll continue (other than filing a lawsuit) trying to collect after you've requested validation. Then you'll have them on FDCPA violations and it'll give you a countersuit and a bit of leverage to negotiate. An attempt at validation can only help you. Plus, considering you've asked the previous collection agency for validation and received none helps you. Keep a log of all records requested, letters sent, phone calls etc. You can present these in court. Also, have a log and receipts for your expenses. Time, mailing costs etc. Part of a countersuit if you get sued.
Also, if they really do sue you... you may consider getting an atty. Sometimes the other atty is just trying for a default judgment and will make mistakes like not bringing the creditor (and instead testifying themselves), not bringing proof of the debt but just a piece of paper, including atty fees actually in the lawsuit etc. I've heard those are improper ways to go about getting a lawsuit (although I've never used these as issues myself)... so an atty might be able to find these issues in a pending lawsuit and help you with other defenses. I'm guessing what you got certified was a demand letter.
Did you get sued or not? Was the letter a court summons demanding a response within a certain time period? Did the response need to be returned to the Court Clerk's office?
Joer, it doesn't matter that they removed it for 3 months. what matters to you is when did you stop making payments on this account? When did the account charge off? Another question I just thought of is how the 96 FDCPA change would effect this account, if this debt would fall under the old rules or the revised rules? So I guess knowing the exact date is important here. Tuit
Joer if the certified letter contained a summons you need to see an attorney because you need to answer it regardless if the SOL has run or not on this debt. Don't take chances, some states allow service by certified mail and yours may be one of them. Tuit
Very important because if its a threat with no action behind it, it is a violation of the FDCPA. Gulf States tried this with me once when I wasn't so informed.
Then it is a very confusing issue. I got my info from an FTC staff opinion letter. FIRST ISSUE: Does Section 809(b) of the FDCPA permit a collection agency to either demand payment or take legal action during the pendency of the thirty (30) day period for disputing a debt in situations where a debtor has not notified the collection agency that the debt is disputed? "[The] starting point in every case involving construction of a statute is the language itself." Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., concurring)). The language of Section 809(b) provides that, "f the consumer notifies the debt collector in writing within the thirty-day period" that the debt is disputed, the debt collector must cease collection of the debt until verification of the debt is obtained and mailed to the consumer.(1) Where Congress intended that debt collectors cease their collection efforts during the thirty-day dispute period, it so specified: if, and only if, a consumer sends the debt collector a notice in writing. Congress did not specify that collectors must cease collection efforts during the dispute period even if consumers send nothing in writing. The Commission has voiced this opinion in recent annual reports to Congress mandated by the FDCPA. As the Commission stated in the 1999 report, for example, "Nothing within the language of the statute indicates that Congress intended an absolute bar to any appropriate collection activity or legal action within the thirty-day period where the consumer has not disputed the debt." Letter from Chairman Robert Pitofsky to the Honorable Albert Gore, Jr. regarding Twenty-First Annual Report to Congress Pursuant to Section 815(a) of the Fair Debt Collection Practices Act, at 10 (Mar. 19, 1999) ("1999 Annual Report"). Because there appears to be some confusion regarding whether the thirty-day period is a dispute period or a grace period, the Commission has recommended in recent annual reports that Congress clarify the FDCPA by adding a provision expressly permitting appropriate collection activity within the thirty-day period, if the debt collector has not received a letter from the consumer disputing the debt. The Commission emphasized that the clarification should include a caveat that the collection activity should not overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt specified. 1999 Annual Report at 10-11.(2) Federal circuit courts that have addressed this issue recently have arrived at the same conclusion. In a 1997 opinion, the Seventh Circuit stated that "[t]he debt collector is perfectly free to sue within the thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor." Bartlett v. Heibl, 128 F.3d 497, 501 (7th Cir. 1997) (Posner, J.). In the most recent federal appellate court pronouncement on the subject, the Sixth Circuit stated, "A debt collector does not have to stop its collection efforts [during the thirty-day period] to comply with the Act. Instead, it must ensure that its efforts do not threaten a consumer's right to dispute the validity of his debt." Smith v. Computer Credit, Inc., 167 F.3d 1052, 1054 (6th Cir. 1999). The Commission continues to believe that the thirty-day time frame set forth in Section 809 is a dispute period within which the consumer may insist that the collector verify the debt, and not a grace period within which collection efforts are prohibited. In response to the ACA's question, therefore, the Commission opines that Section 809(b) does permit a collection agency to either demand payment or take legal action during the thirty-day period for disputing a debt when a consumer from whom the collection agency is attempting to collect a debt has not notified the collection agency that the debt is disputed. The collection agency must ensure, however, that its collection activity does not overshadow and is not inconsistent with the disclosure of the consumer's right to dispute the debt specified by Section 809(a). http://www.ftc.gov/os/2000/04/fdcpaadvisoryopinion.htm So, it appears to be saying, the ca can send out the initial letter, immediately file suit, but if they receive a validation they must cease activity on it until they have validated. But the problem would be that the lawsuit would have beaten the sol in this situation if it played out as I've described.
LizardKing, was the Spears v Brennan case reversed because, while the creditor had the right to sue, he was also obligated to validate the debt as requested by debtor's atty? I know there's alot more but is that the basics of the reversal? Tuit
I think that's the jist of it. If a suit is filed during the 30 day dispute period, and the ca receives the validation after the suit is filed, but still in the 30 day period, the suit must be put on hold until the ca validates.
